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Tuesday, 10 November 2015

Landmark judgment of Supreme court on daughter's right to receive share in ancestral property?

Accordingly, we hold that the rights under theamendment are applicable to living daughters of livingcoparceners as on 9th September, 2005 irrespective ofwhen such daughters are born. Disposition or alienationincluding partitions which may have taken place before20th December, 2004 as per law applicable prior to the said

date will remain unaffected. Any transaction of partitioneffected thereafter will be governed by the Explanation.REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO.7217 OF 2013PRAKASH & ORS. …APPELLANTSVERSUSPHULAVATI & ORS. ...RESPONDENTSWITHSLP (C) NOS.21814 OF 2008, 18744 OF 2010,Citation;(2016)2 SCC36Dated;OCTOBER 16, 20151. The only issue which has been raised in this batch ofmatters is whether Hindu Succession (Amendment) Act,2005 (‘the Amendment Act’) will have retrospective effect.In the impugned judgment (reported in AIR 2011 Kar. 78Phulavati vs. Prakash), plea of restrospectivity has beenupheld in favour of the respondents by which theappellants are aggrieved.2. Connected matters have been entertained in thisCourt mainly on account of the said legal issue particularlywhen there are said to be differing views of High Courtswhich makes it necessary that the issue is decided by thisCourt. It is not necessary to go into the facts of theindividual case or the correctness of the findings recordedby the courts below on various other issues. It was madeclear during the hearing that after deciding the legal issue,all other aspects may be decided separately in the light ofthe judgment of this Court.3. Only for the purpose of deciding the above legalquestion, we refer to the brief facts in Civil Appeal No.7217of 2013. The respondent-plaintiff, Phulavati filed suitbeing O.S. No.12/1992 before Additional Civil Judge (SeniorDivision), Belgaum for partition and separate possession tothe extent of 1/7th share in the suit properties in Schedule‘A’ to ‘G’ except property bearing CTS No.3241 mentionedin Schedule ‘A’ in which the share sought was 1/28th.4. According to the case of the plaintiff, the suitproperties were acquired by her late father YeshwanthChandrakant Upadhye by inheritance from his adoptive

mother Smt. Sunanda Bai. After the death of her father on18th February, 1988, she acquired the share in the propertyas claimed.5. The suit was contested mainly with the plea that theplaintiff could claim share only in the self acquiredproperty of her deceased father and not in the entireproperty. During pendency of the suit, the plaintiffamended the plaint so as to claim share as per theAmended Act 39 of 2005. The trial court partly decreedthe suit to the extent of 1/28th share in certain propertieson the basis of notional partition on the death of her fatherand in some of the items of property, no share was given,while 1/7th share was given in some other properties asmentioned in detail in the judgment of the trial court.6. The respondent-plaintiff preferred first appeal beforethe High Court with the grievance that the plaintiff becamecoparcener under the Amendment Act 39 of 2005 and wasentitled to inherit the coparcenary property equal to herbrothers, apart from contentions based on individualclaims in certain items of property.

7. The stand of the defendants-appellants was that theplaintiff could not claim any share in self acquired propertyof the members of the joint family and that the claim ofthe plaintiff had to be dealt with only under Section 6 ofthe Hindu Succession Act, 1956 as it stood prior to theamendment by Act 39 of 2005. The defendants reliedupon a division bench judgment of the High Court in M.Prithviraj vs. Neelamma N.1laying down that if fatherof a plaintiff had died prior to commencement of Act 39 of2005, the amended provision could not apply. It was onlythe law applicable on the date of opening of successionwhich was to apply.8. The High Court framed following question forconsideration on this aspect :“(ii) Whether the plaintiff is entitled to a sharein terms of Section 6 of the Hindu SuccessionAct as amended by Act No.39 of 2005?”9. It was held that the amendment was applicable topending proceedings even if it is taken to be prospective.The High Court held that :1ILR 2009 Kar. 3612

“61. The law in this regard is too well settledin terms of the judgment of the Supreme Courtin the case of G. Sekar Vs. Geetha and othersreported in (2009) 6 SCC 99. Any developmentof law inevitably applies to a pendingproceeding and in fact it is not even to be takenas a retrospective applicability of the law butonly the law as it stands on the day being madeapplicable.62. The suit, no doubt, might havebeen instituted in the year 1992 and evenassuming that it was four years after the demiseof Yeshwanth Chandrakant Upadhye, theposition so far as the parties are concerned whoare all members of the joint family, in terms ofSection 6 as amended by Act No.39 of 2005 isthat a female member is, by a fiction of lawcreated in terms of the amended provision alsobecomes a coparcener and has a right in jointfamily property by birth. They are also sharermembers of the coparcenary property at parwith all male members. When a partition takesplace, coparceners succeed to the property inequal measure. Such is the legal position interms of Section 6 of the Hindu Succession Actas amended by Act No.39 of 2005 and asdeclared by the Supreme Court in the case ofG.S. Sekar (supra). The only exception carvedout to the applicability and operation of Section6 of the Hindu Succession Act as amended byAct No.39 of 2005 being a situation or a factualposition where there was a partition which hadbeen effected by a registered partition deed orby a decree of the court which has attainedfinality prior to 20.12.2004 in terms ofsub-section (5) to Section 6.63. In the present case such beingnot the factual position, the exception availableunder sub-section (5) to Section 6 cannot becalled in aid by the defendants and therefore,the liability in terms of the amended provisionsoperates. It is not necessary for us to multiplythe judgment by going into details or discussingother judgments referred to and relied upon by

the learned counsel for the parties at the Bar asone judgment of the Supreme Court if clinchesthe issue on the point, it is good enough for us,as a binding authority to apply that law anddispose of the case as declared in thatjudgment.”10. The respondent-plaintiff was accordingly heldentitled to 1/7th share in all items in Schedules ‘A’ to ‘D’.In respect of Schedule ‘F’, first item was given up by theplaintiff. Out of the other two items, she was held entitledto 1/7th share in Item No.2 and 1/7th share in 40%ownership in Item No.3.11. The defendants-appellants have questioned thejudgment and order of the High Court with the contentionthat the amended provision of Section 6 has no applicationin the present case. Father of the plaintiff died on 18thFebruary, 1988and was thus, not a coparcener on the dateof commencement of the Amendment Act. The plaintiffcould not claim to be “the daughter of a coparcener” atthe time of commencement of the Act whichwas the necessary condition for claiming the benefit. Onthe death of plaintiff’s father on 18th February, 1988,notional partition took place and shares of the heirs were

crystallized which created vested right in the parties.Such vested right could not have been taken away by asubsequent amendment in absence of express provision ornecessary intendment to that effect. Moreover,the amending provision itself was expressly applicable “onand from” the commencement of the Amendment Act, i.e.,9th September, 2005. The High Court held that even if theprovision was prospective, it could certainly apply topending proceedings as has been held in some decisionsof this Court. It is pointed out that the amendment couldapply to pending proceedings, only if the amendment wasapplicable at all.12. Learned counsel for the respondents would supportthe view taken by the High Court.13. We have heard learned counsel for the parties inthe present appeal as well as in connected matters forthe rival view points which will be noticed hereinafter.14. The contention raised on behalf of the appellants andother learned counsel supporting the said view is that the2005 Amendment was not applicable to the claim of a

daughter when her father who was a coparcener in thejoint hindu family died prior to 9th September, 2005. Thissubmission is based on the plain language of the statuteand the established principle that in absence of expressprovision or implied intention to the contrary, anamendment dealing with a substantive right is prospectiveand does not affect the vested rights. If such acoparcener had died prior to the commencement of theAmendment Act, succession opens out on the date of thedeath as per the prevailing provision of the succession lawand the rights of the heirs get crystalised even if partitionby metes and bounds does not take place. It was pointedout that apparently conflicting provision in Explanation toSection 6(5) and the said Section was required to be givenharmonious construction with the main provision. Theexplanation could not be read in conflict with the mainprovision. Main provision of Section 6(1) confers right ofcoparcener on a daughter only from commencement ofthe Act and not for any period prior to that. The proviso toSection 6(1) also applies only where the main provision ofSection 6(5) applies. Since Section 6(5) applies to partition2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27 etc.effected after 20th December, 2004, the said proviso andthe Explanation also applies only when Section 6(1)applies. It is also submitted that the Explanation wasmerely a rule of evidence and not a substantive provisiondetermining the rights of the parties. Date of a daughterbecoming coparcener is on and from the commencementof the Act. Partitions effected before 20th December, 2004remain unaffected as expressly provided. The Explanationdefines partition, as partition made by a registered deed oreffected by decree of a court. Its effect is not to wipe outa legal and valid partition prior to the said date, but toplace burden of proof of genuineness of such partition onthe party alleging it. In any case, statutory notionalpartition remains valid and effective.15. On the contrary, stand on behalf of the respondentsis that the amendment being piece of social legislation toremove discrimination against women in the light of 174thReport of the Law Commission, the amendment should beread as being retrospective as interpreted by the HighCourt in the impugned judgment. A daughter acquiredright by birth and even if her father, who was a

coparcener, had died prior to coming into force of theamendment, the shares of the parties were required to beredefined. It was submitted that any partition which mayhave taken place even prior to 20th December, 2004 wasliable to be ignored unless it was by a registered deed ofpartition or by a decree of the Court. If no registeredpartition had taken place, share of the daughter will standenhanced by virtue of the amendment.16. We have given due consideration to the rivalsubmissions. We may refer to the provision of Section 6of the Hindu Succession Act as it stood prior to the 2005Amendment and as amended :Section 6 of the HinduSuccession ActSection 6 on and from thecommencement of the HinduSuccession (Amendment) Act,20056. Devolution of interest ofcoparcenary property. Whena male Hindu dies after thecommencement of this Act,having at the time of his deathan interest in a Mitaksharacoparcenary property, hisinterest in the property shalldevolve by survivorship uponthe surviving members of thecoparcenary and not inaccordance with this Act:PROVIDED that, if the deceased6. Devolution of interest incoparcenary property.-(1) On andfrom the commencement of theHindu Succession (Amendment) Act,2005, in a Joint Hindu familygoverned by the Mitakshara law, thedaughter of a coparcener shall,-(a) by birth become a coparcener inher own right in the same manner asthe son;(b) have the same rights in thecoparcenary property as she wouldetc.had left him surviving a femalerelative specified in class I ofthe Schedule or a male relativespecified in that class whoclaims through such femalerelative, the interest of thedeceased in the Mitaksharacoparcenary property shalldevolve by testamentary orintestate succession, as thecase may be, under this Actand not by survivorship.Explanation I: For the purposesof this section, the interest of aHindu Mitakshara coparcenershall be deemed to be theshare in the property thatwould have been allotted tohim if a partition of theproperty had taken placeimmediately before his death,irrespective of whether he wasentitled to claim partition ornot. Explanation 2: Nothingcontained in the proviso to thissection shall be construed asenabling a person who hasseparated himself from thecoparcenary before the deathof the deceased or any of hisheirs to claim on intestacy ashare in the interest referred totherein. 7. Devolution ofinterest in the property of atarwad,have had if she had been a son;(c) be subject to the same liabilitiesin respect of the said coparcenaryproperty as that of a son,and any reference to a HinduMitakshara coparcener shall bedeemed to include a reference to adaughter of a coparcener:Provided that nothing contained inthis sub-section shall affect orinvalidate any disposition oralienation including any partition ortestamentary disposition of propertywhich had taken place before the20th day of December, 2004.(2) Any property to which a femaleHindu becomes entitled by virtue ofsub-section -(1) shall be held by herwith the incidents of coparcenaryownership and shall be regarded,notwithstanding anything containedin this Act, or any other law for thetime being in force, as propertycapable of being disposed of by herby testamentary disposition.(3) Where a Hindu dies after thecommencement of the HinduSuccession (Amendment) Act, 2005,his interest in the property of a JointHindu family governed by theMitakshara law, shall devolve bytestamentary or intestatesuccession, as the case may be,under this Act and not bysurvivorship, and the coparcenaryproperty shall be deemed to havebeen divided as if a partition hadtaken place and,-(a) the daughter is allotted the sameshare as is allotted to a son;(b) the share of the pre-deceasedson or a pre-deceased daughter, asthey would have got had they beenalive at the time of partition, shall beallotted to the surviving child of such

predeceased son or of suchpre-deceased daughter; and(c) the share of the pre-deceasedchild of a pre-deceased son or of apre-deceased daughter, as such childwould have got had he or she beenalive at the time of the partition,shall be allotted to the child of suchpre-deceased child of thepre-deceased son or a pre-deceaseddaughter, as the case may be.Explanation.- For the purposes of thissub-section, the interest of a HinduMitakshara coparcener shall bedeemed to be the share in theproperty that would have beenallotted to him if a partition of theproperty had taken placeimmediately before his death,irrespective of whether he wasentitled to claim partition or not.(4) After the commencement of theHindu Succession (Amendment) Act,2005, no court shall recognise anyright to proceed against a son,grandson or great-grandson for therecovery of any debt due from hisfather, grandfather orgreat-grandfather solely on theground of the pious obligation underthe Hindu law, of such son, grandsonor great-grandson to discharge anysuch debt:Provided that in the case of any debtcontracted before thecommencement of the HinduSuccession (Amendment) Act, 2005,nothing contained in this sub-sectionshall affect-(a) the right of any creditor toproceed against the son, grandson orgreat-grandson, as the case may be;or(b) any alienation made in respect ofor in satisfaction of, any such debt,and any such right or alienation shall

be enforceable under the rule ofpious obligation in the same mannerand to the same extent as it wouldhave been enforceable as if theHindu Succession (Amendment) Act,2005 had not been enacted.Explanation.-For the purposes ofclause (a), the expression "son","grandson" or "great-grandson" shallbe deemed to refer to the son,grandson or great-grandson, as thecase may be, who was born oradopted prior to the commencementof the Hindu Succession(Amendment) Act, 2005.(5) Nothing contained in this sectionshall apply to a partition, which hasbeen effected before the 20th day ofDecember, 2004.Explanation.- For the purposes of thissection "partition" means anypartition made by execution of adeed of partition duly registeredunder the Registration Act, 1908 (16of 1908) or partition effected by adecree of a court.'17. The text of the amendment itself clearly provides thatthe right conferred on a ‘daughter of a coparcener’ is ‘onand from the commencement of Hindu Succession(Amendment) Act, 2005’. Section 6(3) talks of death afterthe amendment for its applicability. In view of plainlanguage of the statute, there is no scope for a differentinterpretation than the one suggested by the text of theamendment. An amendment of a substantive provision is

always prospective unless either expressly or by necessaryintendment it is retrospective3. In the present case, there isneither any express provision for giving retrospective effectto the amended provision nor necessary intendment to thateffect. Requirement of partition being registered can haveno application to statutory notional partition on opening ofsuccession as per unamended provision, having regard tonature of such partition which is by operation of law. Theintent and effect of the Amendment will be considered alittle later. On this finding, the view of the High Courtcannot be sustained.18. Contention of the respondents that the Amendmentshould be read as retrospective being a piece of sociallegislation cannot be accepted. Even a social legislationcannot be given retrospective effect unless so provided foror so intended by the legislature. In the present case, thelegislature has expressly made the Amendment applicableon and from its commencement and only if death of thecoparcener in question is after the Amendment. Thus, noother interpretation is possible in view of express language3 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

of the statute. The proviso keeping dispositions oralienations or partitions prior to 20th December, 2004unaffected can also not lead to the inference that thedaughter could be a coparcener prior to thecommencement of the Act. The proviso only means thatthe transactions not covered thereby will not affect theextent of coparcenary property which may be availablewhen the main provision is applicable. Similarly,Explanation has to be read harmoniously with thesubstantive provision of Section 6(5) by being limited to atransaction of partition effected after 20th December,2004. Notional partition, by its very nature, is not coveredeither under proviso or under sub-section 5 or under theExplanation.19. Interpretation of a provision depends on the text andthe context4. Normal rule is to read the words of a statutein ordinary sense. In case of ambiguity, rational meaninghas to be given5. In case of apparent conflict, harmoniousmeaning to advance the object and intention of legislaturehas to be given6.4 RBI vs. Peerless (1987) 1 SCC 424, para 335 Kehar Singh vs. State (1988) 3 SCC 6096 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358

20. There have been number of occasions when aproviso or an explanation came up for interpretation.Depending on the text, context and the purpose, differentrules of interpretation have been applied7.21. Normal rule is that a proviso excepts something outof the enactment which would otherwise be within thepurview of the enactment but if the text, context orpurpose so require a different rule may apply. Similarly, anexplanation is to explain the meaning of words of thesection but if the language or purpose so require, theexplanation can be so interpreted. Rules of interpretationof statutes are useful servants but difficult masters8.Object of interpretation is to discover the intention oflegislature.22. In this background, we find that the proviso toSection 6(1) and sub-section (5) of Section 6 clearly intendto exclude the transactions referred to therein which mayhave taken place prior to 20th December, 2004 on whichdate the Bill was introduced. Explanation cannot permitreopening of partitions which were valid when effected.7 S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 5918 Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231

Object of giving finality to transactions prior to 20thDecember, 2004 is not to make the main provisionretrospective in any manner. The object is that by faketransactions available property at the introduction of theBill is not taken away and remains available as and whenright conferred by the statute becomes available and is tobe enforced. Main provision of the Amendment in Section6(1) and (3) is not in any manner intended to be affectedbut strengthened in this way. Settled principles governingsuch transactions relied upon by the appellants are notintended to be done away with for period prior to 20thDecember, 2004. In no case statutory notional partitioneven after 20th December, 2004 could be covered by theExplanation or the proviso in question.23. Accordingly, we hold that the rights under theamendment are applicable to living daughters of livingcoparceners as on 9th September, 2005 irrespective ofwhen such daughters are born. Disposition or alienationincluding partitions which may have taken place before20th December, 2004 as per law applicable prior to the said

date will remain unaffected. Any transaction of partitioneffected thereafter will be governed by the Explanation.24. On above interpretation, Civil Appeal No.7217 of2013 is allowed. The order of the High Court is set aside.The matter is remanded to the High Court for a freshdecision in accordance with law. All other matters may belisted for hearing separately for consideration on 24thNovember, 2015.25. The view which we have taken above is consistentwith and not in conflict with any of the earlier decisions.We may now refer to the decisions cited by the parties.Main decisions cited by the respondents are: Prema vs.Nanje Gowda9, Ganduri Koteshwaramma vs. ChakiriYanadi10, V.K. Surendra vs. V.K. Thimmaiah11, RamSarup vs. Munshi12, Dayawati vs. Inderjit13, AmarjitKaur vs. Pritam Singh14, Lakshmi Narayan Guin vs.Niranjan Modak15, S. Sai Reddy vs. S. Narayana9(2011) 6 SCC 46210 (2011) 9 SCC 78811 (2013) 10 SCC 211, para 1812 (1963) 3 SCR 85813 (1966) 3 SCR 27514 (1974) 2 SCC 36315 (1985) 1 SCC 27018Page 19Reddy16 and State of Maharashtra vs. Narayan Rao17.Many of these decisions deal with situations where changein law is held to be applicable to pending proceedingshaving regard to intention of legislature in a particular law.There is no dispute with the propositions laid down in thesaid decisions. Question is of application of the saidprinciple in the light of a particular amending law. Thedecisions relied upon do not apply to the present case tosupport the stand of the respondents.25.1. In Ram Sarup case (supra), the question forconsideration was of amendment to the PunjabPre-emption Act, 1930 by Punjab Act 10 of 1960 restrictingthe pre-emption right. Section 31 inserted by way ofamendment prohibited passing of a decree which wasinconsistent with the amended provisions. It was held thatthe amendment was retrospective and had retrospectiveoperation in view of language employed in the saidprovision.25.2. In Dayawati case (supra), Section 6 of the PunjabRelief of Indebtedness Act, 1956 expressly gave16 (1991) 3 SCC 64717 (1985) 2 SCC 321, paras 8 to 10Page 20retrospective effect and made the statute applicable to allpending suits on the commencement of the Act. The Actsought to reduce the rate of interest in certaintransactions to give relief against indebtedness to certainspecified persons.25.3. In Lakshmi Narayan Guin case (supra), thequestion was of applicability of Section 13 of the WestBengal Premises Tenancy Act, 1956 which expresslyprovided that no order could be passed by the Courtcontrary to the scheme of the new law.25.4. In Amarjit Kaur case (supra), Section 3 of thePunjabPre-emption (Repeal) Act, 1973 was considered whichexpressly prohibited the Court from passing anypre-emption decree after the commencement of the Act.25.5. There is also no conflict with the principle laid downin V.K. Surendra case (supra) which deals with apresumption about the nature of a joint family propertyand burden of proof being on the person claiming suchPage 21property to be separate. The said decision only lays downa rule of evidence.25.6. In S. Sai Reddy case (supra), the question forconsideration was whether even after a preliminary decreeis passed determining the shares in partition, such sharescould be varied on account of intervening events at thetime of passing of the final decree. In the said case,partition suit was filed by a son against his father in whicha preliminary decree was passed determining share of theparties. Before final decree could be passed, there was anamendment in the Hindu Succession Act (vide A.P.Amendment Act, 1986) allowing share to the unmarrieddaughters. Accordingly, the unmarried daughters appliedto the court for their shares which plea was upheld. Thesaid judgment does not deal with the issue involved in thepresent matter. It was not a case where the coparcenerwhose daughter claimed right was not alive on the date ofthe commencement of the Act nor a case where shares ofthe parties stood already crystalised by operation of law towhich the amending law had no application. Same is theposition in Prema and Ganduri cases (supra). Page 2225.7. In Narayan Rao case (supra), it was observed thateven after notional partition, the joint family continues.The proposition laid down in this judgment is also nothelpful in deciding the question involved herein. The textof the Amendment itself shows that the right conferred bythe Amendment is on a ‘daughter of a coparcener’ who ismember of a coparcenary and alive on commencement ofthe Act.25.8. We also do not find any relevance of decisions inState of Rajasthan vs. Mangilal Pindwal18 and WestU.P. Sugar Mills Asson. vs. State of U.P.19 or othersimilar decisions for deciding the issue involved herein.The said decisions deal with the effect of repeal of aprovision and not the issue of restrospectivity with whichthe Court is concerned in the present case.26. We now come to the decisions relied upon by theappellants. In M. Prithviraj case (supra), the viewtaken appears to be consistent with what has been saidabove. It appears that this was a binding precedent beforethe Bench of the High Court which passed the impugned18 (1996) 5 SCC 6019 (2002) 2 SCC 645Page 23order but does not appear to have been referred to in theimpugned judgment. Judgments of this Court in SheelaDevi vs. Lal Chand20 and G. Sekar vs. Geetha21 andthe judgment of Madras High Court in Bagirathi vs. S.Manivanan22 have been relied upon therein. In SheelaDevi case (supra), this Court observed:21. The Act indisputably would prevail over theold Hindu Law. We may notice that theParliament, with a view to confer right upon thefemale heirs, even in relation to the joint familyproperty, enacted Hindu Succession Act, 2005.Such a provision was enacted as far back in1987 by the State of Andhra Pradesh. Thesuccession having opened in 1989, evidently,the provisions of Amendment Act, 2005 wouldhave no application. Sub-section (1) of Section6 of the Act governs the law relating tosuccession on the death of a coparcener in theevent the heirs are only male descendants. But,the proviso appended to Sub-section (1)of Section 6 of the Act creates an exception.First son of Babu Lal, viz., Lal Chand, was, thus,a coparcener. Section 6 is exception to thegeneral rules. It was, therefore, obligatory onthe part of the respondents-plaintiffs to showthat apart from Lal Chand, Sohan Lal will alsoderive the benefit thereof. So far as the Secondson, Sohan Lal is concerned, no evidence hasbeen brought on records to show that he wasborn prior to coming into force of HinduSuccession Act, 1956.”20 (2006) 8 SCC 58121 (2009) 6 SCC 99, para 3022 AIR 2005 Mad 250 (DB)Page 24Full Bench judgment of Bombay High Court inBadrinarayan Shankar Bhandari Vs. OmpraskashShankar Bhandari23 also appears to be consistent withthe view taken hereinabove.26.1. In Gurupad Khandappa Magdum vs. HirabaiKhandappa Magdum24, Shyama Devi vs. ManjuShukla25 and Anar Devi vs. Parmeshwari Devi26cases this Court interpreted the Explanation 1 to Section 6(prior to 2005 Amendment) of the Hindu Succession Act. Itwas held that the deeming provision referring to partitionof the property immediately before the death of thecoparcener was to be given due and full effect in view ofsettled principle of interpretation of a provisionincorporating a deeming fiction. In Shyama Devi andAnar Devi cases, same view was followed.26.2. In Vaishali Satish Ganorkar vs. SatishKeshaorao Ganorkar27, the Bombay High Court held thatthe amendment will not apply unless the daughter is born23 AIR 2014, BOM 151. paras 40-5724 (1978) 3 SCC 383, paras 6,11 and 1325 (1994) 6 SCC 342, para 726 (2006) 8 SCC 656, paras 10,1127 AIR 2012, BOM 101, paras 13 to 37Page 25after the 2005 Amendment, but on this aspect a differentview has been taken in the later larger Bench judgment.We are unable to find any reason to hold that birth of thedaughter after the amendment was a necessary conditionfor its applicability. All that is required is that daughtershould be alive and her father should also be alive on thedate of the amendment.26.3. Kale vs. Dy. Director of Consolidation28 andDigambar Adhar Patil vs. Devram Girdhar Patil29have been cited to submit that the family settlement wasnot required to be registered. Santosh Hazari vs.Purushottam Tiwari30 lays down that the Appellate Courtmust deal with reasons of the trial court while reversing itsfindings.26.4 Kannaiyan vs. The Assistant Collector ofCentral Excise31, C.I.T. Gujarat vs. KeshavlalLallubhai Patel32, Umayal Achi vs. Lakshmi Achi33 andShivappa Laxman vs. Yellawa Shivappa28 (1976) 3 SCC 119, para 929 (1995) Supp. 2 SCC 428 at page 43030 (2001) 3 SCC 179, para 15.31 1969 (2) MLJ 277,32 (1965) 2 SCR 10033 AIR 1945 FC 25 at 31(d)Page 26Shivagannavar34 have been cited to canvass thatpartition was recognition of pre-existing rights and did notcreate new rights.26.5 This would normally have ended our order with theoperative part being in para 24 which disposes of CivilAppeal No.7217 of 2013 and directs listing of othermatters for being dealt with separately. However, onemore aspect relating to gender discrimination againstmuslim women which came up for consideration needs tobe gone into as Part II of this order.Part II27. An important issue of gender discrimination whichthough not directly involved in this appeal, has beenraised by some of the learned counsel for the partieswhich concerns rights to muslim women. Discussions ongender discrimination led to this issue also. It was pointedout that inspite of guarantee of the Constitution, muslimwomen are subjected to discrimination. There is nosafeguard against arbitrary divorce and second marriageby her husband during currency of the first marriage,34 AIR 1954 BOM 47, para 4Page 27resulting in denial of dignity and security to her. Althoughthe issue was raised before this Court in AhmedabadWomen Action Group(AWAG) vs. Union of India35,this Court did not go into the merits of the discriminationwith the observation that the issue involved state policyto be dealt with by the legislature36. It was observed thatchallenge to the Muslim Women (Protection of Rights onDivorce) Act, 1986 was pending before the ConstitutionBench and there was no reason to multiply proceedings onsuch an issue.28. It is pointed out that the matter needs considerationby this Court as the issue relates not merely to a policymatter but to fundamental rights of women under Articles14, 15 and 21 and international conventions andcovenants. One of the reasons for the court having notgone into the matter was pendency of an issue before theConstitution Bench which has since been decided by thisCourt in Danial Latifi vs. Union of India37. The35 (1997) 3 SCC 57336 This Court referred to the observations of Sahai, J. in Sarla Mudgal vs. Union of India (1995) 3SCC 635 that a climate was required to be built for a uniform civil code. Reference was also made toobservations in Madhu Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court couldat best advise and focus attention to the problem instead of playing an activist role.37 (2001) 7 SCC 740Page 28Constitution Bench did not address the said issue but theCourt held that Article 21 included right to live withdignity38 which supports the plea that a muslim womancould invoke fundamental rights in such matters. In Javedvs. State of Haryana39, a Bench of three judgesobserved that practice of polygamy is injurious to publicmorals and can be superseded by the State just aspractice of ‘sati’ 40. It was further observed that conductrules providing for monogamy irrespective of religion arevalid and could not be struck down on the ground ofviolation of personal law of muslims41. In John38 “ Para 33……. This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3) SCC 545] andManeka Gandhi v. Union of India [1978 (1) SCC 248] held that the concept of “right to life andpersonal liberty” guaranteed under Article 21 of the Constitution would include the “right to live withdignity”. Before the Act, a Muslim woman who was divorced by her husband was granted a right tomaintenance from her husband under the provisions of Section 125 CrPC until she may remarry andsuch a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Actdepriving the divorced Muslim women of such a right to maintenance from her husband and providingfor her maintenance to be paid by the former husband only for the period of iddat and thereafter tomake her run from pillar to post in search of her relatives one after the other and ultimately to knock atthe doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions ofSection 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance fromtheir former husbands under the beneficial provisions of the Code of Criminal Procedure which areotherwise available to all other women in India cannot be stated to have been effected by a reasonable,right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX ofthe Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonablydiscriminated and got out of the protection of the provisions of the general law as indicated under theCode which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging toany other community. The provisions prima facie, therefore, appear to be violative of Article 14 ofthe Constitution mandating equality and equal protection of law to all persons otherwisesimilarly circumstanced and also violative of Article 15 of the Constitution which prohibits anydiscrimination on the ground of religion as the Act would obviously apply to Muslim divorcedwomen only and solely on the ground of their belonging to the Muslim religion.”39 (2003) 8 SCC 36940 Para 4641 Paras 54 to 59Page 29Vallamattom vs. UOI42, it was observed that Section 118of Indian Succession Act, 1925 restricting right ofchristians to make Will for charitable purpose was withoutany rational basis, was discriminatory against christiansand violated Article 1443. Laws dealing with marriage andsuccession are not part of religion44. Law has to changewith time45. International covenants and treaties could bereferred to examine validity and reasonableness of aprovision46.29. In Charu Khurana vs. UOI47, this Court consideredthe issue of gender discrimination in the matter of denialof membership of “Cine Costume Make-up Artists and HairDressers Association” in film industry. It was held thatsuch discrimination violates basic constitutional rights.30. It was thus submitted that this aspect of the mattermay be gone into by separately registering the matter asPublic Interest Litigation (PIL). We are of the view that thesuggestion needs consideration in view of earlier decisions42 (2003) 6 SCC 61143 Paras 28 and 2944 Para 4445 Paras 33 to 3646 Paras 30 to 3247 (2015) 1 SCC 192Page 30of this Court. The issue has also been highlighted in recentArticles appearing in the press on this subject48.31. For this purpose, a PIL be separately registered andput up before the appropriate Bench as per orders ofHon’ble the Chief Justice of India.32. Notice be issued to learned Attorney General andNational Legal Services Authority, New Delhi returnable on23rd November, 2015. We give liberty to learned counselalready appearing in this matter to assist the Court on thisaspect of the matter, if they wish to volunteer, for eitherview point.………………………………………………..J. [ ANIL R. DAVE ]………………………………………………..J. [ ADARSH KUMAR GOEL ]NEW DELHIOCTOBER 16, 201548 “The Tribune” dated 24.09.2015 “Muslim Women’s quest for equality” by Vandana Shukla and“Sunday Express Magazine” dated 04.10.2015 “In Her Court” by Dipti Nagpaul D’Souza.Page 31